R. v. TSE TSUN HUNG and Others

IN THE COURT OF APPEAL

1995, No. 440
(Criminal)

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J U D G M E N T

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Mortimer, J.A. (giving the judgment of the Court) :

1. On 8 June 1995 the applicants (D1, D2, D3 and D4 at trial) and two others were each found guilty of handling three stolen BMW cars by Deputy Judge McKee in the District Court. They were each sentenced to 4 years imprisonment. Each now applies for leave to appeal against his conviction.

The offence

2. The offence concerns the events on the nights of 14 and 15 April 1990. Police officers were keeping observation near Hing Ping Road. They were keeping observation because of information received concerning the offence of handling these stolen BMW cars which they anticipated might occur nearby. The particular witness was Chief Inspector Grant. He observed the area near Fu Tei Village. Throughout most of that night he observed activities near a compound off the Hing Ping Road in which various men arrived in cars. The cars moved. The men spoke to one another. People arrived and went into the compound. Gates were opened. A tractor and trailer were moved from near the gate. Eventually two cars were parked at the end of Hing Ping Road near Castle Peak Road.

3. Three BMW cars were eventually driven into the compound. Then the police pounced, those three cars were found there and one of them had been put into and suspended in a container.

4. CI Grant observed all these activities through binoculars from the top of a building. In the result, the case depended upon whether, so far as D1, D2 and D3 are concerned, that police officer's observation and identification of D1, D2 and D3 was correct. If it was accurate and those persons had been doing what he said they had been doing, there could be no question but that they were involved in receiving the three BMW cars. So we turn briefly to the case as found by the judge against each of the applicants.

5. D3 came to the scene at about 4.15 a.m. in the morning. He was the driver of a car, registration No. FC3227. The car was seen to park in a car park on the other side of Hing Ping Road from the compound. He walked across to the compound and opened the gate. He stood there for 10 minutes or so before another car, EK5015, arrived. The driver of FC3227 was noted to be wearing a 2-tone jacket. When the police pounced later, FC3227 was parked near Castle Peak Road and the driver was sitting in the driving seat. There was serious challenge at the trial to the identification but, as the judge said, the officer had made notes during his observation of the person wearing the 2-tone jacket. When he was arrested in the driving seat, he was found to be wearing the 2-tone jacket. The jacket was identified by the Chief Inspector. On arrest, D3 was found to have a mobile phone and a pager.

6. The judge accepted the evidence of the Chief Inspector. He reminded himself of the dangers of identification. Although this was an unusual case of identification, he was right to do so. On that evidence, he convicted.

7. So far as D1 was concerned, at about 4.25 a.m. the officer noted that about six other people were brought in two cars into the car park already mentioned. They walked across into the compound where the container and all the cars were later found.

8. The two cars - FC3227 and EK 5015 - which we have already mentioned, were moved to park near Castle Peak Road. After that, one BMW arrived and was driven into the compound. A white car then arrived with three or four other people who went to the compound. That white car then left.

9. At 5.10 a.m. two other BMW cars arrived at speed and went into the compound. Two people left the compound and walked down Hing Ping Road towards Castle Peak Road. The officer said that D1 was one of those two people. He noted that he wore a light anorak with writing on the back. He made a note of that contemporaneously with his observation.

10. The judge warned himself about the dangers of identification evidence. He considered the lighting, the view the officer had through his powerful binoculars and the place where this man went wearing those clothes. When the alarm was given for the police to move in, the officer saw the man turn and run as the unmarked police car came along the road. But he was quickly caught. The officer identified him when he ran down to the scene after his observations. In support of the case against him, D1 was found to have on him over $1,000, and he also had a mobile phone with him - as did the others. The judge decided that on all the evidence he could rely upon the identification of the officer and convicted.

11. D2 was arrested in the driver's seat of car EK5015, parked just off Hing Ping Road near Castle Peak Road. The officer observed the movement of that car before the arrest took place at 5.23 a.m. D2 also had a phone with him. He said, when he was arrested, that he was only sleeping there; the evidence was that he was not sleeping when he was arrested. The judge carefully considered the evidence of the observations and the movements of that car prior to the arrest, and determined that D2, the driver, was involved in this matter and convicted him.

12. D4 was in a slightly different position. In order to prevent the escape of anyone in the compound at the time when the police pounced, the police had established a cordon on the side of the compound away from the road. In the circumstances it was not surprising that a number of men, including D4, appeared, scrambling through the bushes away from the container.

13. After arrest D4 explained that he knew something about what had happened there. First, he said to the officer that a man called Ah Ming had asked him to help take care of minor things and do some odd jobs. He said, "I knew that we are needed to do these things only when I arrived at the container storage compound". That was his first remark. Later he made another statement under caution. He was asked what the minor things and odd jobs were. He said, "I don't know. I won't answer". When asked again, he said, "'These things' mean that they were illegally transported reported lost luxury cars. But I haven't done that; I haven't stolen cars". He said that he had been asked by Ah Ming to help at the storage compound at about 4 a.m. that morning and that he had been taken there in a white "single-door" private car.

14. The judge considered all the evidence, including the fact that this applicant was getting away from the compound through the bushes and over the hill at a time when it was submitted on his behalf he did not know the police had pounced. The suggestion was that he was leaving the compound simply because he wanted to avoid doing anything illegal. The question arose as to why - if he did not know the police had pounced - he did not leave by a much more convenient route. The judge, having considered the whole of the evidence, inferred that this applicant must have been involved in the offence and convicted him. He examined the evidence in a practical and common-sense way with the burden and standard of proof in mind. He also before reaching his conclusion bore in mind that neither this applicant nor any other gave evidence to refute any of the obvious inferences.

15. Each of these applicants applies for leave to appeal against his conviction. Mr Grounds, for D1 and D3, invites the Court to say that it is arguable that the verdicts were unsafe and unsatisfactory. He relies in particular upon a passage in Turnbull [1976] 3 WLR 445 at 449H which reads:

"A failure to follow these guidelines is likely to result in a conviction being quashed and will do so if in the judgment of this court on all the evidence the verdict is either unsatisfactory or unsafe."

If Mr Grounds had continued to the next paragraph of the judgment on p.450 he would have cited this:

"Having regard to public disquiet about the possibility of miscarriages of justice in this class of case, some explanation of the jurisdiction of this court may be opportune. That jurisdiction is statutory: we can do no more than the Criminal Appeal Act 1968 authorises us to do. [A similar provision, I interpose, applies to this Court in Hong Kong] It does not authorise us to re-try cases."

16. In each of these applications, we are invited to consider in some detail the judge's findings on the evidence he accepted and the reasons he gave. It suffices to say that in each of these cases we have been invited to consider the evidence and in effect re-try the case. We decline to do so. There is no arguable point raised by or on behalf of any of these applicants. These applications are refused.